death of the party before the day, or by the act of law; as if I gave a bond conditioned to do an act, and a statute afterwards made it unlawful, or by the act of the obligee himself, for it would be unjust that he should take advantage of his own wrong-Hesketh v. Grey, T. 27 Geo. II. (a) Covehaut on a demise of a messuage with the appurtenances, in which the defendants covenanted to repair, and breach assigned in not repairing; the defendants pleaded the entry of the plaintiff in atrium posterius of the messtage. The court held it no plea, for the entry into the back-yard does not suspend the covenant to repair, as he is still in possession of the messuage; but the rent is suspended by an entry into any part.-Snelling v. Stagg & Andrews, M. 26 Car. II. C. B. (b) Where there is an express negative and likewise an affirmative in the covenant, the defendant must not plead generally, covenants performed, but must set forth that he has hot done what he covenanted not to do, and that he perforthed what he covenanted to perform; and if any of the covenants be in the disjunctive, he must shew what part he has per formed; (Co. Litt. 303 b. Fletcher v. Richardson, 10 Geo. II.); so if any of them be to be done of record, the performance must be shewn specially, because the record shall be tried by itself.- Laughwell v. Palmer, M. 14 Car. II. 1 Sid. 87. Ley v. Lutterell, M. 17 Jac. I. Palm. 70. But note; That if the negative covenant be only in affirmance of the affirmative, performance generally is a good plea. If by a deed two things are to be performed, one on the part of the plaintiff, the other on the part of the defendant, if there be not mutual remedy, the plaintiff ought to aver performance on his part: (Pordage v. Cole, M. 21 Car. II. 1 Saund. $19.) But where the agreement was in these words, "It is agreed upon by G. S. and B. C. that the said "B. C. shall give J. S. £100 for all his lands in Dale; in witness " whereof we do mutually put our hands and seals:" It was holden (a) Vide etiam Bassett v. Bassett, 1 Mod. 265. S. P. (b) To covenant for not keeping premises in repair was pleaded: 1st, Performance: 2d, A Licence. The plaintiff then offered to put in the deed, without producing the subscribing witness to prove the words more fully than they were stated in the declaration. And this, because there was no plea of non est factum. But per Ellenborough, C. J. the defendant, by not pleading non est fac tum, only admits as much as is in upon the record, if the plaintiff would avail himself of any other parts of the deed, he must prove it by the attesting witness in the common way. Williams v. Sills, 2 Camp. 519. that that the action was well brought without averring the conveyance of the land, for if it were not conveyed the defendant might have an action of covenant against the plaintiff; but it had been otherwise, if the specialty had been the words of the defendant only, and not the words of both parties by way of agreement, as in the case stated,-Lock v. Wright, T. 9 Geo. I. Stra. 569. Quære, & vide Kingston y, Preston, Dougl. 664. (689.) If the covenant of the que part be negative, and the affirmative covenant of the other part be in consideration of the performance thereof; though the negative be broken, yet the affirmative ought to be performed, for it is not a condition precedent, as a negative covenant cannot be said to be performed while it is possible to be broken.--Eccleston v. Clipsham, T. 20 Car. II. 1 Saund. 155. Where the covenant is for the act of a stranger, there performance [166] generally is not a good plea, but he must shew how performed.-Fitzpatrick v. Robinson, E. 1 W. & M. 1 Show. 1. A. covenants that he has full power to lease, &c. in covenant it is sufficient for the plaintiff to say that he had not full power, but in such case the defendant must shew what estate he had at the time of making the lease, that it may appear he had full power, and then the plaintiff must shew a special title in somebody else, but the covenant being general, the general assignment is primâ facie good; (Bradshawe's Ca. 10 Jac. I. 9 Co. 60.); yet if A. covenant to permit B. to take the rents and profits of certain land, non permișit alone is too general; for in such case the defendant could not plead quod permisit.—Francis' Ca. 8 Jac. I. 8 Co. 89. Tender. In covenant the damages, and not the debt, being the thing in demand, there is no necessity of pleading tender and refusal with an uncore prist-Carter v. Downish, M. 1 W. & M. 1 Show. 190. (a) Levy by Distress.—In covenant for non-payment of rent, the defendant cannot plead levied by distress, for that is a confession that it was not paid at the day, but riens in arrear, or payment at the day, will be a good plea. Aliter, of riens in arrear, generally.-Hare v. Saville, M. 1609. 2 Brownl. 273. Slater v. Carter, C. B. E. 4 Geo. I. Ca. temp. King, 30. Release of all demands is not a release of a covenant before it is broken, and therefore cannot be pleaded in bar; (Carthage v. Manley, (a) In this action, if a sum be miscast either too little or too much, it is amendable, and not like the action of debt, which, if al ledged less than it is, without shew- H. 37 Car. II. 2 Show. 90.); (a) but Accord and Satisfaction is a good plea though the action be founded on a deed, for it is not pleaded in discharge of the covenant, but only of the damages, and the covenant remains.― Alden v. Blague, M. 1606. Cro. Jac. 99. (b) Loss by Fire.-In covenant for a year's rent, due Michaelmas 1726, the defendant craved oyer of the lease, in which there was a covenant on the part of the lessee to repair (except the premises shall be demolished by fire) and then pleaded, that before Michaelmas 1725, the premises were burnt, and that they were not rebuilt by the plaintiff during the whole year for which the rent was demanded, nor had he any enjoyment of the premises, therefore prayed judgment if he should be charged with the rent. The plaintiff demurred and had judgment, for whatever was the default of the plaintiff in not repairing, yet the defendant must at all events perform his covenant.-Monk v. Cooper, E. 18 Geo. I. Stra. 763. Raym. 147. S. C. (c) (a) Et vide Co. Litt. 292. Eeles v. Lambert, Alleyn, 38: but a release of all covenants is a good discharge of the covenant before it is broken. Esp. N. P. Dig. 307. Where a discharge is pleaded in nature of a release, defendant must plead it to be by deed. Rogers v. Payne, 2 Wils. 376. For as the covenant is by deed, by deed only shall it be discharged. Blake's Ca. 6 Co. 44. To covenant for rent arrear, defendant cannot plead a release of all demands at a day before the rent was due. Henn v. Hanson, 1 Lev. 99. (b) Vide Blake's Ca. sup. But this is a good plea only where there has been an actual breach, for until then damages are not claimable. Snow v. Franklin, Lutw. 358. (c) This case was decided on the authority of Paradine v. Jane, Alleyn, 27, which holds, that where the law creates a duty or charge, and the party is disabled from performing it without any fault on his part, and he has not any remedy over, the law will excuse him; but where the party, by his own contract, imposes a duty on himself, he is bound to make it good, notwithstanding inevitable accident, because he might have provided against it. And this rule was recognized in Brecknock Co. v. Pritchard, 6 T. R. 751, and in Beale v. Thompson, 3 Bos. & Pull. 420. Vide etiam Belfour v. Weston, 1 T. Rep. 310. This doctrine, however, having been alluded to arguendo, in Cutter v. Powell, 6 T. Rep. 323, Lord Kenyon said, it must be taken with some qualification; for where an action had been brought for rent after the house was burnt down, and the tenant filed his bill for an injunction, Northington, C. said, that if the tenant would give up his lease, he should not be bound to pay the rent; and the case here alluded to (says Mr. Selwyn) was probably that of Camden v. Morton, E. 1764, in Canc. (Selw. N. P. Abr. 394.) See also to this point, Brown v. Quilter, Amb. 619, and Selw. N. P. Abr. 395. Pindar v. Ainsley, 1 T. Rep. 312, (n.) Bullock v. Dommitt, 6 T. Rep. 650, and IValton v. Waterhouse, 2 Saund. 420. Vide etiam Shubrick v. Salmond, 3 Burr. 1637. As to covenants, real, personal, inherent, executed, and executory; how created, where or when binding, or to whose advantage; for relief on non-performance, and how construed and to be performed, see Bridgm. Anal. Dig. in Eq. tit. Covenant, s. I. As to general and uncertain, implied, defective, voluntary, and unlawful covenants, ibid. s. IV. CHAPTER CHAPTER IV. OF DEBT. THE action of Debt is founded upon a contract either express or implied, in which the certainty of the sum or duty appears; and the plaintiff is to recover the sum in numero, and not to be repaired in damages, as he is in those actions which sound only in damages, such as assumpsit, &c. But when the damages can be reduced by the averment to a certainty, debt will lie, as on a covenant to pay so much per load for wood, &c. (Sanders v. Mark, M. 7 W. III. 3 Lev. 429.) So if in an action, in which the plaintiff can only recover damages, there be judgment for him, he can afterwards bring debt for those damages. Slade's Ca. 38 Eliz. 4 Co. 90. (a) Debt will lie for an amercement in a court leet, but then the declaration ought to set forth, that the defendant was an inhabitant as well at the time of the amercement as of the offence, but this will be cured by the verdict, for it must be proved at the trial.-Wicker v. Norris, 8 Geo. II. Ca. temp. Hardw. 116. (b) (a) So debt lies in C. B. on a judgment on a sci. fa. upon a recognizance in B. R. Taine v. Puttenham, Dy. 306, in marg. Lovelesse's Ca. 2 Leon. 14. So if the recognizance be taken in Chancery, debt lies. Cowper v. Langworth, Cro. Eliz. 608. So in B. R. upon a judgment in C. B. removed thither by error. Adamson v. Tomlinson, 1 Sid. 236. So in B. R.. upon a judgment there, after error brought in the Exchequer-chamber. Adamson v. Tomlinson, sup. Denton v. Evans, Lutw. 602. Adams v. Tomlins, 1 Lev. 153, or Adams v. Tomlinson, T. Raym. 100. So after error depending in parliament, for the transcript of the record only is removed. Adamson v. Tomlinson, sup. So on a foreign judgment; and the plaintiff need not shew the ground of the judgment. Walker v. Witter, 1 Dougl. 1. Sinclair v. Fraser, cited ib. 4. Crawford v. Whittal, 1 Esp. N. P. Ca. 719. Duplein v. De Roven, 2 Vern. 540. So upon a judgment recovered in. a London court under the custom, though the original action could not have been brought in a superior court. Mason v. Nicholls, 1 Rol. Abr. 600. And wherever indeb. assumpsit can be maintained debt will lie. Ibid. It lies also for a penalty given by an act of parliament or bye-law, though it does not say by what action it shall be recovered. 1 Rol. Abr. 599. pl. 2. So for a nomine pana. Barns v. Hughs, 1 Lev. 249. (b) Vide etiam Lincoln Earl v. Fisher, Cro. Eliz. 581. So for a pain or amercement in a court baron, debt lies. Hodsden v. Harridge, 2 Saund. 66, 67. Shawe v. Thompson, Cro. Eliz. 428. So for a 'fine upon an admittance to a copyhold. Wheeler v. Honor, 1 Sid. 58. Trotter v. Blake, 2 Mod. 239. Shuttleworth v. Garnet, 3 Mod. 240. Anon. Hardr. 487. Note; Note; In this case the defendant may traverse the fact of the presentment.—Matthews v. Cary, M. 1 W. & M. Carth. 74. " But where there is an averment in the declaration which is not neces sary to maintain the action, the plaintiff is not bound to prove it; as where in debt on a policy of insurance the declaration set forth an agreement in the policy that if any dispute arose, it should be referred to arbitrators to be chosen one by each party, and averred that it had not been referred, and that without default in the plaintiff; at the trial the plaintiff did not prove he ever named a referee, and therefore it was objected that he had not proved his declaration. But on a case reserved the court held it to be no part of the contract, but a collateral agreement, therefore not necessary to be set out in order to intitle the plaintiff to his action, and therefore not necessary to be proved.-Hill v. Hollister, E. 19 Geo. II. K. B. (a) If a sheriff levy money at the suit of J. S. and return the writ served, J. S. may have debt against the sheriff for the money without any actual contract. (b) But if he return that he has taken goods into his hands to (a) In cases of arbitration, without deed, where the arbitrators award one party a certain sum, debt lies for it; but if the award be for doing some other thing which is beneficial to him, he must bring an action on the case. Peytoe's Ca, 9 Co. 78. 1 Rol. Abr. 242. (b) And even so, though the writ should not be returned. 1 Rol. Abr. 598. pl. 17. And at the suit of a sheriff debt lies for fees given to him by statute. Gritt v. Ridgeway, Mo. 853. Jayson v. Rash, 1 Salk. 209. So for an attorney's fees, debt lies against his employer, but not again-t another who promised to pay the demand. Sands v. Trevilian, Cro. Car. 107. 193. So on a foreign judgment debt lies, not as a matter of record, but as a simple contract, which defendant may impeach if he can. Walker v. Witter, Dougl. 1. And to prove it, both the judge's band and public seal must be proved. Henry v. Adey, S East, 221. Sinclair v. Fraser, cited, Dougl. 4. Debt lies also for a simple contract debt. Hulme v. Sanders, 2 Lev. such 4. Smith v. Vow, Mo. 298. And plaintiff may now recover less than the sum demanded in the writ. Vide Aylett v. Lowe, 2 Bla. 1221. Walker v. Witter, sup. M'Quillan v. Cox, 1 Hen. Bla. 249. Emery v. Fell, 2 T. Rep. 23. But debt will not lie on a judg ment after execution sued by Elegit or otherwise, for the plaintiff has chosen another's remedy. 1 Rol. Abr. 601. Nor after defendant is taken by Ca. Sa. and discharged by plaintiff's consent. Vigors v. Aldrich, 4 Burr. 2482. Nor does it lie upon a bill of exchange against the acceptor, for it is the debt of the drawer. Hard's Ca. Salk. 23. Anon. Hardr. 485. Nor on a promissory note. Welsh v. Craig, Stra. 680. Contra Bishop v. Young, 2 Bos. & Pull. 78. Nor for the interest of money, which ought to be recovered by assumpsit in damages. Vide Herries v. Jamieson, 5 T. Rep. 553, where the second count was debt for legal interest for money lent; but Lord Kenyon and the court were of opinion that it would not lie. Nor will debt lie against an executor, |